Final Order 1

Order Details: Copy  of Judgment
Pdf Text: 1 C. C. No.4402015/SS/2018
Received on : 02.05.2018
Registered on : 02.05.2018
Decided on : 06.11.2023
Duration : 05 Y. 06 M. 04 D.
IN THE COURT OF THE METROPOLITAN MAGISTRATE,
44TH COURT, ANDHERI, MUMBAI.
(Presided over by Sujitkumar C. Tayde)
C. C. No.4402015/SS/2018
C.N.R.No.MHMM190060002018
Exh. No.23
Mr. Nagabhushanam Aturi,
Age – 66 Yrs., Occu. Business,
R/o. Bunglow Plot No.133,
S.V.P. Nagar, MHADA,
Andheri (W), Mumbai – 400 053.
: Complainant
V/s.
Mrs. Bhavna Punit Mehta,
Age 48 Yrs., Occu. Housewife,
R/O. Plot No.302, Building No.4A,
Gulmohar Valeey CHS, Patliputra,
Oshiwara, New Link Road,
Jogeshwari (W),
Mumbai – 400 012.
Second address
1st Floor, Bunglow No.34,
Bhushans 34, Janki Devi School Road,
MHADA, SVP Nagar,
Near Versova Telephone Exchange,
Andheri (W),
Mumbai – 400 053.
: Accused
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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2 C. C. No.4402015/SS/2018
Complaint for the offence punishable under Section 138 of The
Negotiable Instruments Act.
Learned advocate of the complainant : Mr. Nagesh Joshi
Learned advocates of the accused : Mr. S. R. Haritwal
J U D G M E N T
(Delivered on 06/11/2023)
This is a peculiar case wherein a wife issued a cheque to
discharge her husband's liability and it was dishonoured. In this case,
the wife is arraigned as the accused and she is alleged to have issued
the cheque which was returned unpaid with the endorsement like
'Payment stopped by drawer'. Thus, the accused stands prosecuted for
the offence punishable under Section 138 of the Negotiable Instruments
Act, 1881(Hereinafter it is referred as 'N.I. Act', in short).
The facts of the case lie in a narrow compass as under:
2. The complainant is owner of Bungalow No.34 which is
situate in S.V.P. Nagar MHADA, Andheri. The 1st Floor and terrace of
the said bungalow was given on leave and licence basis to Mr. Punit
Mehta who is husband of the accused. The husband of the accused got
the possession of the said premises as per the terms and conditions
mentioned in the leave and licence agreement which was executed
between the complainant and him on 25/02/2016 before the JointSub
Registrar, Andheri.
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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3 C. C. No.4402015/SS/2018
3. It is the case of the complainant that the said agreement
expired on 18/02/2019 and the husband of the accused was required to
pay the amount of Rs.3.60,000/ towards the compensation and other
charges as per the terms and condition mentioned in the said agreement
dated 25/02/2016. Hence, the complainant demanded the due amount
to the husband of the accused. Thus, in order to discharge the liability
arising out of the said leave and licence, the accused issued the cheque
of the said amount on behalf of her husband on 19/12/2017 in favour
of the complainant. The said cheque (No.000759) was drawn on Kotak
Mahindra Bank, Andheri.
4. Having received the said cheque, the complainant
presented the same before his banker, HDFC Bank, Andheri (E),
Mumbai, for encashment. But on 16.03.2018, the banker of the
complainant i.e. HDFC Bank, issued the memo of return of the said
cheque and thereby, intimated that the cheque in question was returned
unpaid due to stoppage of the payment by the drawer in the account
maintained by the accused.
5. Having got the knowledge about the dishonour of the said
cheque, the complainant sent statutory demand notice through her
advocate on 23/03/2018 by registered A.D.Post to the accused. By way
of the said notice, the accused was directed to repay the said amount
within the stipulated period. But the accused did not pay the cheque
amount as per directions given in the statutory demand notice. Thus, in
short, according the complainant, the accused committed offence
punishable under section 138 Negotiable Instrument Act by issuing the
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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4 C. C. No.4402015/SS/2018
cheque which was dishonoured with the endorsement such as payment
stopped by the drawer. Hence, the complainant knocked the doors of
this Court by filing the present complaint on hand.
6. The learned predecessor in office issued process against the
accused as per Section 142(a) of the Negotiable Instruments Act. In
response the summons, accused appeared. The contents of particulars
(Exh.No.09) for the offence punishable under section 138 of the
Negotiable Instruments Act were readover and explained to the
accused. The accused pleaded not guilty and claimed to be tried.
7. In order to prove the guilt of the accused, the complainant
examined himself by way of filing her affidavit in lieu of examination
inchief (Exh.No.14) under section 145(1) of the Negotiable
Instruments Act. In addition to oral evidence, the complainant relied
upon the following documentary evidence.
Sr.No. Description of documents Exh.No.
1. Cheque 16
2. Bank Memo 17
3. Legal Notice 18
4. Postal receipts 19
5. Leave and Licence agreement 20
8. In view of the incriminating evidence placed on record
against the accused, the statement of the accused came to be recorded
under Section 313 of the Code of Criminal Procedure wherein the
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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5 C. C. No.4402015/SS/2018
accused has taken the stand that her husband obtained the premises on
leave and licence basis from the complainant and the cheque was not
issued to discharge her legal liabilities.
9. The learned advocate for the complainant, Mr. Nagesh
Joshi, vehemently argued that the complainant has satisfied all the
ingredients of Section 138 of the Negotiable Instruments Act and
therefore, according to him, the accused is liable to be punished in
accordance with law.
10. Per contra, the learned advocate for the accused, Mr. S. R.
Haritwal filed his written notes of argument and submitted that the
accused has succeeded to rebut the presumption under section 139 of
the Negotiable Instruments Act. He further argued that the cheque was
issued by the accused who was not party to the leave and licence
agreement and therefore, the case does not come under the purview of
Section 138 of the Negotiable Instruments Act.
11. Having heard the learned advocates for both the sides, I
perused the record. In view of the accusation and the defence,
following points arise for my determination. In the light of evidence, I
record my findings thereon with reasons as under:
POINTS FINDINGS
1. Does complainant prove that cheque in
question was issued by the accused in
favour of him for discharging legally
enforceable liability?
Proved
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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6 C. C. No.4402015/SS/2018
2. Does the complainant prove that the
cheque was returned unpaid for the
reason “Payment stopped by the
drawer”?
Proved
3. Does the complainant prove that he had
issued the statutory demand notice to
the accused within limitation?
Proved
4. Does the complainant prove that the
accused failed to pay the cheque
amount in spite of being served with
the notice within the statutory
limitation?
Proved
5. Whether the accused succeeded in
rebutting the presumption arising out
of section 139 of the Negotiable
Instruments Act?
Disproved
6. Whether the offence punishable under
section 138 of the Negotiable
Instruments Act is made out against
accused ?
Proved
7. What order ? The accused is
convicted for the
offence punishable
under section 138 of
the Negotiable
Instruments Act as
per the final order.
:R E A S O N S:
AS TO POINT NO.1:
(Does complainant prove that disputed cheque was issued by the accused
in favour of him for discharging legal enforceable liability?)
12. In the present case, the accused is alleged to have
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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7 C. C. No.4402015/SS/2018
committed the offence punishable under section 138 of the Negotiable
Instruments Act. In order to bring home of the guilt of the accused the
complainant has to satisfy, the following ingredients:
i) A person must have drawn a cheque on an account maintained by him
in a bank for the payment of certain amount of money to another
person from out of that account for the discharge in whole or in part, of
any debt or other liability.
ii) That the cheque has been presented to the bank within a period of six
months from the date, on which it is drawn or within period of its
validity, whichever is earlier.
iii) That the cheque is returned by the bank unpaid, either because the
amount of money standing to the credit of the account, is insufficient to
honour the cheque or that exceeds and amount arranged to be paid
from that account by an agreement made with the bank.
iv) The payee or the holder in due course of the cheque makes a demand
for the payment of said amount of money by giving a notice in writing,
to the drawer of the cheque, within 30 days of the receipt of the
information by him from the bank regarding dishonour of the cheque as
unpaid.
v) The drawer of the said cheque fails to make payment of said amount of
money to the payee or holder in due course of the cheque within 15
days from the receipt of the said notice.
vi) The payee or holder in due course lodged written complaint in the
court within 30 days thereafter.
vi) The drawer of the said cheque failed to rebut the presumption under
section 118 and 139 of the Negotiable Instruments Act.
13. In view of section 139 of the Negotiable Instruments Act,
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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it shall be presumed, unless the contrary is proved, that the holder of
the cheque received the cheque, of the nature referred to in Section
138, for the discharge, in whole or in part, of any debt or other liability.
So also section 118 of the Negotiable Instruments Act, there is a
presumption that the cheque was issued for certain consideration.
14. It is pertinent to note here that the explanation appended
to Section 138 of the Negotiable Instruments Act explains the meaning
of expression “debt or other liability” for the purpose of Section 138 of
the Negotiable Instruments Act. Thus, the explanation reveals that to
attract an offence under section 138 of the Negotiable Instruments Act
there should be a legally enforceable debt or other liability subsisting on
the date of drawal of the cheque. As per the definition mentioned in
Aiyar's Judicial Dictionary, “Debt is a pecuniary liability. A sum payable
or recoverable by action in respect of money demanded”.
Keeping in mind these settled provisions, I proceed to determine
the points noted above.
15. At the outset, it is pertinent to note here that the accused in
the instant case has not disputed the fact of execution of leave and
licence agreement which is filed on record. So also it is undisputed fact
that the complainant is owner of the premises wherein husband of the
accused established his office in accordance with the terms and
conditions mentioned in the agreement dated 25/02/2016.
16. Having gone through the evidence and the relevant
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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9 C. C. No.4402015/SS/2018
documents placed on record, one fact is crystal clear that at the time of
issuance of the said cheque, the husband of the accused was in arrears
of the rent and another charges to the tune of Rs.3,60,000/. It is
needless to say here that an owner is entitled to recover the rent or
other charges from the tenant on the basis of the leave and licence
agreement. Hence, having regard to the admitted facts of the case
regarding the execution of the leave and licence agreement, it can be
concluded that the amount mentioned in the cheque can be termed as
the legally enforceable debt.
17. The complainant categorically deposed that the husband of
the accused was in arrears of the monthly compensation and other
charges amounting to Rs. 3,60,000/ and he admitted his liability by
way of a letter dt.13/12/2017. In fact, while conducting the cross
examination, the learned advocate for the accused referred the said
letter which is admitted by the complainant. In such circumstances,
such letter can be taken into consideration while appreciating the
evidence.
18. Having gone through the said letter, it appears that the
husband of the accused categorically mentioned therein that he had
defaulted the monthly amount as per the agreement and the cheque of
Rs.3,60,000/ was issued for that purpose. Thus, the clear and
unambiguous admission given by the husband of the accused which is
relied upon by the accused specifically shows that the cheque in
question was issued in order to discharge the legally enforceable debt.
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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10 C. C. No.4402015/SS/2018
19. The learned advocate for the accused, Mr.Haritwal
vehemently argued that the cheque in question was issued by the
accused who is not party to the leave and licence agreement and
therefore, the liability under section cannot be fastened on her.
20. Having gone through the said agreement, it appears that
the accused is not party to the said agreement. But during the course of
crossexamination of the complainant, he has voluntarily deposed that
both the husband and wife came to his house at the time of the issuance
of the cheque. In fact, it is not the defence of the accused that the
accused was residing separate from her husband at the time of issuance
of the cheque in dispute. So also there is no iota of evidence placed on
record to suggest that the accused and her husband were having their
separate business. Moreover, having gone through the averments made
in the letter dated 13/12/2017, it transpires that the husband of the
accused has categorically mentioned therein that the cheque in question
was issued from his company account which belongs to his wife
(accused). This letter further reveals that the husband of the accused
has accepted his liability towards the payment arising out of the leave
and licence agreement. Thus, having regard to this positive and
relevant evidence, it can be concluded that the cheque in question was
issued by the accused on behalf of her husband in order to discharge the
legal liabilities.
21. Now the question arises whether a wife can issue a cheque
to discharge her husband's liability. In my opinion, when a wife resides
with her husband and enjoys the fruits of his income, then in that
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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11 C. C. No.4402015/SS/2018
circumstances, she is liable to discharge the legally enforceable debt or
other liabilities of her husband. In this regard, I am guided by the ratio
laid down by the Hon'ble Madras High Court in the case of
Mr.Jaishankar Vs.Sree Gokulam Chits and Finance Corporation
Pvt.Ltd., reported in 2020 SCC Online Madras 5550, wherein the
Hon'ble Madras High Court held that
“If a cheque is issued by a person in discharge of the liability of
another person and if the cheque is dishonored, the person who issued the
cheque can be prosecuted under section 138 of the Negotiable Instruments
Act”.
22. It would not be out of place to mention here that the
accused has nowhere disputed the fact that the said cheque was not
issued by her. So also the signature made thereon is not disputed by
the accused. In such scenario, I am guided by the ratio laid down by
the Hon'ble Apex Court in the case of Triyambak S. Hedge V/s.
Shripal (Cri. Appeal No.849850/2011) wherein the Hon'ble Apex
Court observed –
“Signature on document at Exh.No.P2 is not disputed. Exh.No.P2
is the dishonoured cheque based on which the complaint was filed. From
the evidence tendered the J.M.F. Court, it is clear that the respondent has
not disputed the signature on the cheque. If that be the position as noted
by Courts below, a presumption would arise under section 139 of N.I. Act
in favour of the applicant who was holder of the cheque”.
23. So also the ration laid down by the Hon'ble Apex Court, in
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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12 C. C. No.4402015/SS/2018
the case of M/s. Kalamani Tex and another V/s. P. Balsubramaniyam
[Criminal Appeal No. 123 of 2021] is also helpful in this matter. In
this citation the Hon'ble Apex Court held that the Negotiable
Instruments Act mandates that once the signature(s) of an accused on
the cheque/negotiable instrument are established, then these 'reverse
onus' clauses become operative.
24. In view of discussion noted above, I have come to the
conclusion that the complainant has proved the fact that the cheque in
question was issued by the accused in favour of her for discharging
legally enforceable liability. Hence, I record my finding in the
affirmative for Point No.1.
AS TO POINT NO.2:
(Does the complainant prove that the cheque was returned unpaid with
endorsement such as payment stopped by the drawer?)
25. It is the case of the complainant that the Cheque No.
000759 which had been issued by the accused was dishonoured due to
stoppage of the payment in the account maintained by her. In the case
of MMTC Ltd., Vs Medchl Chemicals and Pharma (P) Ltd., Appeal
(Crl) 117374 of 2001 , the Hon'ble Supreme Court held that the
complaint under section 138 of the Negotiable Instruments Act can be
made not only when a cheque is dishonoured due to insufficient fund
but also when the drawer of the cheque instructs their bank to “stop
payment” on the cheque.
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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13 C. C. No.4402015/SS/2018
26. The complainant deposed that after having received the
said cheque, he deposited the same in his bank account lying with
HDFC Bank. It is evident that the said bank returned the cheque with
the endorsement of stoppage of payment by drawer. In order to
corroborate the oral testimony in this regard, the complainant filed the
computer generated copy of cheque return memo (Exh.No.17). This
document has presumptive value unless it is rebutted. This document
specifically disclose that the cheque in question was dishonoured with
endorsement like payment stopped by the drawer.
27. In fact, the document filed by the complainant (i.e. cheque
return memo) has not been disputed by the accused. Moreover, no any
rebuttal evidence has been lead by the accused in this regard.
Therefore, in my opinion, the oral testimony of the complainant is duly
corroborated by the documentary evidence. Hence, it can be held that
the complainant proved the fact that the cheque was returned unpaid
due to stoppage of payment. Resultantly, I record finding in affirmative
for Point No.2.
AS TO POINT NO.3 & 4:
(Does the complainant prove that he had issued the statutory demand
notice to the accused within limitation demanding the cheque amount?)
(Does the complainant prove that the accused failed to pay the cheque
amount in spite of being served with the notice within the statutory
limitation?)
28. In view of Section 138 (b) of the Negotiable Instruments
Act, the payee or the holder in due course of cheque, is required to
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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make a demand for the payment of the amount of money by giving a
notice in writing, to the drawer of the cheque within 30 days from the
receipt of information by him from the bank regarding the return of the
cheque as unpaid. So let us scan the evidence in this regard.
29. According to the evidence of the complainant, after having
received intimation regarding the dishonour of the cheque, he issued
the notice to the accused on 23/03/2018 by registered post. In order
to support his oral evidence, the complainant filed the office copy of the
statutory demand notice (Exh.No.18). So also he filed copies of the
postal receipt and the envelope in which the said notice was sent.
30. It is pertinent to note here that the address of the accused
mentioned in the postal receipt and the said envelope is exactly similar
to the address noted in the complaint. Therefore, it can be presumed
that the notice was sent on the proper address of the accused.
31. In the case of Malanbai Ratnaparkhi V/s. Govinda R.
Motade reported in 2002 Cr.L.J.1188, the Hon'ble Bombay High
Court held that
“Once the notice is shown to have been dispatched by post and the
envelop in which such notice was sent, was carrying correct address of the
sendee written on it, the presumption would arise in favour of the sender
to the effect that such notice was duly served upon the sendee unless that
presumption is rebutted by necessary evidence alongwith the fact that the
sendee was not responsible for such nonservice”.
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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15 C. C. No.4402015/SS/2018
32. It is settled that where a notice is not claimed even though
sent by registered post, with the aid of Section 27 of the General
Clauses Act, the drawer of the cheque may be called upon to rebut the
presumption which arises in favour of service of notice. In the present
case on hand the accused did not adduce any cogent evidence to rebut
the said presumption. On the other hand, though the complainant was
crossexamined at length, it the fact regarding the issuance of the said
statutory demand notice by registered post has not been denied. In
such circumstances, it can be presumed that the said notice was served
on the accused within the statutory period.
33. Having gone through the record, it transpires that the
accused failed to make the payment of the money to the complainant in
due course of the cheque. It is admitted portion that the accused has not
made full and final payment of the cheque amount till passing this
Judgment.
34. In view of the discussion of the above, I have no hesitation
to hold that the complainant had issued the statutory demand notice to
the accused within prescribed period and the accused failed to pay the
cheque amount to the complainant within the statutory period of
limitation. Hence, I record my finding in affirmative for Points No.3
and 4.
AS TO POINT NO.5:
(Whether the accused succeed in rebutting the presumption arising out of
section 139 of the Negotiable Instruments Act?)
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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16 C. C. No.4402015/SS/2018
35. In the case of Goa Plast Pvt. Ltd., V/s Chico D'souza
(2003 SCC (Cri) 499, the Hon'ble Supreme Court considered the object
behind section 138 and 139 of the Negotiable Instruments Act and held
that the entire burden is on accused to show that cheque was not issued
for any debt or liability as mentioned in the complaint. It is settled that
the standard proof of rebutting the presumption is preponderance of
probabilities. Having regard to this settled position, I turn to make the
scrutiny of the evidence placed on record to determine whether the
accused rebutted the presumption under section 139 of the Negotiable
Instruments Act.
36. At the outset, it is pertinent to note here that the accused
neither stepped into the witness box nor did she produce any
documentary evidence to establish his defence. But it is settled that
even though the accused does not examine himself, yet she can
establish her defence from the crossexamination of the witnesses of the
complainant and from the other material placed on record. Having
regard to this proposition, I turn to make the scrutiny of the evidence
placed on record.
37. It is pertinent to note here that except giving the suggestion
regarding the averments made in the letter dated 13/12/2017, no any
substantial part of evidence was brought on record during the course of
crossexamination of the complainant to support the claim of the
accused. In fact, the complainant himself has admitted the fact that the
husband of the accused had issued the letter dated 13/12/2017 and
thereby he had undertaken the liability of paying the amount
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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17 C. C. No.4402015/SS/2018
mentioned in the cheque. Therefore, in my opinion, such suggestions
do not support the defence of the accused. On the other hand, these
suggestions expressly support the claim of the complainant. Thus, in
short, except denial towards the liability of the accused, no any
considerable defence was brought on record to rebut the presumption
as contemplated under section 139 of the Negotiable Instruments Act.
38. In the backdrop of the discussion noted above, I have come
to the conclusion that the accused utterly failed to rebut the
presumption as contemplated under Section 139 of the Negotiable
Instruments Act. Hence, I record my finding in negative for Point
No.5.
AS TO POINT NO.6:
39. In view of the positive finding for Point No.1 to 4, it can be
held that the complainant has duly proved her claim by adducing
cogent and relevant evidence. Hence, it can be concluded that the
offence punishable under section 138 of the Negotiable Instruments Act
is made out against the accused.
40. I explained the accused that she is guilty for the offence of
dishonour of the cheque. She is further intimated that the Negotiable
Instruments Act has provided punishment to the offence of
imprisonment up to two years or fine up to twice the amount of the
cheque in dispute or both. Thereafter, I asked the accused to clarify her
stand on the nature and quantum of the sentence, if any. Therefore, the
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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accused is called upon to make her submission on the quantum of
punishment. Hence, I take pause to hear the accused.
Sd/
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
DATE: 06.11.2023 44th Court, Andheri, Mumbai.
41. The accused submitted that she is responsible member of
her family and therefore, leniency may be shown. The learned advocate
for the accused, Mr.Haritwal also prayed to show leniency while
slapping the punishment.
42. On the other hand, the learned advocate for the
complainant argued that the accused is liable to be punished for having
committed the offence punishable under section 138 of the Negotiable
Instruments Act.
43. Having heard the accused on the quantum of punishment, I
perused the record.
44. Having regard to the conduct of the accused and the nature
of the offence, I do not find any special reason or justification to extend
the benefit of probation to the accused as per the provision of
Probation of Offender Act.
45. In the case of M/s. Kalamani Tex and another V/s. P.
Balsubramanian, decided in Special Leave Petition (Cri)
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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19 C. C. No.4402015/SS/2018
No.1876/2018 dated 10/02/2021, the Hon'ble Apex Court has given
certain guidelines and for ready reference relevant paras from said
judgment are quoted below:
“As regard to the claim of compensation raised on behalf of the
respondent, we are conscious of the settled principles that the object of
Chapter XVII of the NIA is not only punitive but also compensatory. The
provisions of NIA envision a single window for criminal liability for
dishonour of cheque as well as civil liability for realization of the cheque
amount. It is also well settled that there needs to be a consistent approach
towards awarding compensation and unless there exist special
circumstances, the Courts should uniformly levy find up to twice the
cheque amount along with simple interest at the rate of 9% per annum.”
46. In the case of Kaushalya Devi Massand V/s. Reookishori
Khore, (Criminal Appeal No.723/2011), the Hon'ble Supreme Court
observed that an offence under Section 138 of N.I.Act cannot be
equated to any offence under the Indian Penal Code as Section 138
attracted liability to civil wrong that has been given criminal overtone.
47. In the present case on hand, the complainant has been
waiting for justice since last five years. In fact, the record shows that
the accused not only tried to avoid her liability but also took lame
excuses and denied to repay the due amount as per the terms and
conditions mentioned in the leave and licence agreement which is relied
upon by her. In fact, the accused is woman and she issued the cheque
to discharge the liability of her husband. Thus, having regard to the
ratio laid down in citation supra and the status of the accused coupled
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
-- 19 of 21 --
20 C. C. No.4402015/SS/2018
with the nature of the case, following order would meet the ends of the
justice:
O R D E R
1] The accused, Mrs. Bhavna Punit Mehta, Age – 48 Yrs., Occu.
Housewife, R/O. Plot No.302, Building No.4A, Gulmohar
Valeey CHS, Patliputra, Oshiwara, New Link Road, Jogeshwari
(W), Mumbai – 400 012, is hereby convicted for the offence
punishable under Section 138 of the Negotiable Instruments
Act in view of Section 255 (2) of the Code of Criminal
Procedure.
2] The accused is sentenced to pay fine of Rs.5,00,000/ (Rs. Five
Lac Only) for having committed the offence punishable under
section 138 of the Negotiable Instruments Act. In default of
payment of fine, the accused shall suffer simple imprisonment
for period of three months.
3] The amount of fine of Rs.5,00,000/ (Rs. Five Lac Only) which
is imposed on the accused shall be paid to the complainant as
compensation under Section 357 (3) of the Code of Criminal
Procedure within two months from today.
4] The amount of compensation as noted above shall be paid to
the complainant, subject to expiry of the appeal period or the
orders of Honourable Appellate Court (if any).
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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21 C. C. No.4402015/SS/2018
5] The accused has not spent any period in the custody during the
trial. Hence, setoff under section 428 of the Code of Criminal
Procedure, 1973 is not given to the accused.
6] The copy of this Judgment be provided free of cost to the
accused immediately after it is prepared in view of section 363
(1) of the Code of Criminal Procedure, 1973.
7] The accused is informed about her right of appeal against this
judgment within a statutory period.
8] The Judgment is dictated on dais and pronounced in open
Court.
(Sujitkumar C. Tayde)
Date : 06.11.2023 Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
Typed On: 06.11.2023
Signed On: 06.11.2023
spj
(Sujitkumar C. Tayde)
Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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